Smt Doddakka Uruf Babiyamma vs Smt Basamma
2023 Latest Caselaw 1256 Kant

                                1




     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 10TH DAY OF FEBRUARY 2023

                          PRESENT

     THE HON'BLE MR. JUSTICE P.S.DINESH KUMAR

                            AND

 THE HON'BLE MR. JUSTICE T.G.SHIVASHANKARE GOWDA

         REGULAR FIRST APPEAL NO.167 OF 2007

BETWEEN:

SMT. DODDAKKA
URUF BABIYAMMA
D/O. LATE MAMSADA ANGADI
MUNISWAMAPPA
AGED ABOUT 40 YEARS
R/AT NO.126
BENNIGANAHALLI VILLAGE
K.R.PURAM
BANGALORE-560016.                         ... APPELLANT

(BY SRI JANARDHANA G., ADVOCATE)

AND:

1.     SMT. BASAMMA
       W/O LATE MAMSADA ANGADI
       MUNISWAMAPPA
       AGED ABOUT 66 YEARS

2.     MUNIRAJU
       S/O LATE MAMSADA ANGADI
       MUNISWAMAPPA
       AGED ABOUT 46 YEARS

       BOTH RESIDING AT NO.46
                               2




     BENNIGANAHALLI VILLAGE
     K.R.PURAM
     BANGALORE -560 016.

3.   SRI RANGAIAH
     S/O LATE CHELUVAIAH
     MAJOR
     TFP INSULATION SECTION
     NGEF
     BANGALORE-560036.                   ...RESPONDENTS

(VIDE ORDER DATED 11.07.2012, NOTICE TO R1 AND R2
 SERVICE HELD SUFFICIENT;
 VIDE ORDER DATED 07.08.2012 SERVICE OF NOTICE BY WAY
 OF PAPER PUBLICATION IS HELD SUFFICIENT TO R3)


      THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST
THE JUDGMENT AND DECREE DATED 31.10.2006 PASSED IN O.S.
NO.6419/2000 ON THE FILE OF THE XVIII ADDL. CITY CIVIL
JUDGE, CCH.NO.32, BANGALORE CITY, PARTLY DECREEING THE
SUIT FOR PARTITION.

     THIS RFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT   ON   01.12.2022   AND   COMING    ON  FOR
PRONOUNCEMENT      OF      JUDGMENT     THIS    DAY,
T.G.SHIVASHANKARE GOWDA J., DELIVERED THE FOLLOWING:

                    JUDGMENT

This appeal is by the plaintiff against the judgment

and decree dated 31.10.2006 in O.S.No.6419/2000 on

the file of the XVIII Additional City Civil Judge (CCH-32),

Bangalore City ('the trial court' in brevity), partly

decreeing the suit for partition and permanent

injunction.

2. For the sake of convenience, parties shall be

referred as per their status before the Trial Court.

3. Brief facts of the case are, one Muniswamappa

is the husband of first defendant, father of the plaintiff

and the second defendant. He had purchased item Nos.1

and 2 of the plaint schedule properties. Item No.3 of

the plaint schedule property is the ancestral property of

the plaintiff and defendant Nos.1 and 2. These

properties are situated at Benniganahalli village,

K.R.Puram Hobli, Bangalore.

4. During his life time, father of the plaintiff has

put up a commercial complex by constructing ground,

first, second and third floor in item No.1 of the plaint

schedule property, which consists of 16 shops in the first

and second floor and a residential portion in the third

floor, which are leased to tenants.

5. Father of the plaintiff has purchased plaint item

No.2 property from the third defendant for the benefit of

the plaintiff by paying the entire sale consideration and

put her in possession of the same. She has extended

the existing structure and started living with her family

members.

6. Except item No.2, there are no other properties

available for the plaintiff for her residential purpose.

Due to ban on registration of revenue sites, her father

was not able to complete the sale deed and register it in

her name. But he has called upon the third defendant to

execute the sale deed in her favour. On 07.11.1998,

plaintiff's father died. The third defendant is willing to

execute the sale deed in her favour, but defendant

Nos.1 and 2 are pressurizing him to register in their

names. After the death of her father, plaintiff requested

the defendants to effect the partition and allot her 1/3rd

share, but it was being postponed by them. She came

to know that defendant Nos.1 and 2 were making

attempts to get the suit item No.2 registered in the

name of Raghavendra, son of second defendant. Hence,

she requested defendant Nos.1 and 2 to retain it for her,

as promised by her father, but they did not oblige. She

also requested the defendants not to register the item

No.2 in favour of Raghavendra, for which, they not only

refused, but threatened that she would be thrown out of

item No.2. Without any alternative, she has come

before the court, seeking 1/3rd of her share and to

protect her possession.

7. The suit is opposed by defendant Nos.1 and 2 by

filing separate written statements. It is the case of

defendants that the plaintiff has no right over the suit

schedule properties, item No.1 of the suit schedule

property is self-acquired property of the second

defendant. He has put up the construction and running

a garment factory. Suit item No.2 has been purchased

by second defendant by paying the sale consideration

earned from his hard work and he is the owner in

possession of it.

8. The husband of the plaintiff was operating

several commercial Trucks. He was deserted by his

parents and came to the second defendant. Due to

natural love and affection on sister, the second

defendant permitted the plaintiff and her husband to

reside in a portion of item No.2 property and in the

remaining portion, he is in possession. The third

defendant knew that the entire sale consideration in

respect of item No.2 was paid by the second defendant

and sale deed has to be executed in favour of the

second defendant only.

9. Item No.3 is measuring only 25 feet x 40 feet

and not 60 feet x 40 feet, as claimed by the plaintiff. It

is the ancestral property, which fell to the share of their

father in the family partition.

10. The plaintiff was married and residing in the

husband's house since 25 years and she is not entitled

for partition and in the least, she may be entitled to an

insignificant share, only when a male member of the

family seeks for partition by arraying her as a

defendant.

11. The second defendant is putting up

construction in a portion of item No.2 of the property.

He has four grown up children and one daughter, who is

married and the ancestral house in which he is residing

is old, does not have sufficient accommodation. Hence,

he requested the plaintiff to vacate the portion of the

property in her occupation. The plaintiff is well-settled

in her life, she has three major sons, who are all

gainfully employed, husband of the plaintiff is the owner

of several commercial Trucks, whereas, second

defendant is the only earning member in the family. As

the plaintiff is not entitled to any share, the suit is not

maintainable and sought for its dismissal.

12. On the basis of the pleadings, the trial court

has framed the following issues:

"1. Whether the plaintiff proves that the suit schedule properties are the joint family properties of the parties to the suit?

2. Whether the plaintiff proves she has constructed a building and developed the suite item No.2 property and she is entitled for allotment of the said building to her share in the partition?

3. Whether the plaintiff is entitled to 1/3rd share in the suit schedule properties and separate possession of the same by metes and bounds?

4. Whether the plaintiffs are entitled for enquiry into the mesne profits?

5. Whether the plaintiff proves that she is entitled for permanent injunction as sought for?

prove that suit item Nos.1 and 2 are the self acquired properties of defendant No.2?

7. Whether defendant Nos.1 and 2 prove that suit item No.3 is still ancestral undivided property of Muniswamappa his brothers and sisters?

8. Whether defendant Nos.1 and 2 prove that the plaintiff is in permissive possession of the portion of the suit item No.2 of the suit schedule property?

9.Whether there is no cause of action?

10.Whether the suit is bad for non-

joinder of proper and necessary parties?

11.To what reliefs are the parties entitled to?

12.What order or decree"

13. Before the trial court, the plaintiff examined

one witness and marked Exs.P1 to P5. The defendants

did not lead any evidence. The trial court has recorded

its finding that the plaintiff is not entitled for any share

in the suit schedule property, but she could continue in

the item No.2 of the schedule property till she is evicted

in accordance with law. Aggrieved, the plaintiff is before

this court.

     14.       We     have    heard    the   arguments       of

Sri.G.Janardhana,         learned     Counsel      for      the

appellant/plaintiff and perused the records.

15. The defendant Nos.1 and 2 admit that the item

No.3 of the suit schedule property is the ancestral

property which fell to the share of Muniswamappa in the

partition between his brothers. On a perusal of the

impugned judgment, we found that the trial court has

recorded that the plaintiff is not the member of the joint

family being a married daughter and she is not entitled

to claim partition and at best in a partition effected, she

is entitled to a fraction of share. This demonstrates that

the plaintiff has a right over the item No.3 of the suit

schedule property.

16. Defendant Nos.1 and 2 contend that item No.1

is the self-acquired property of second defendant. Item

No.2 is acquired by second defendant from third

defendant by paying the sale consideration. The plaintiff

was permitted to be in occupation of a portion of the

building in item No.2. In view of such defence, burden

is upon the defendant Nos.1 and 2 to establish that they

are the self-acquired property of the second defendant.

There is no dispute that the plaintiff is in occupation of

item No.2 of the schedule property. The manner in

which she came in possession has been explained by the

defendants, which requires to be established by placing

cogent evidence. We have not found any evidence on

behalf of the defendants who, after filing the written

statement, kept quiet without denying the claim of the

plaintiff.

17. It is the specific case of the plaintiff that item

No.2 of the plaint schedule has been acquired by her

father for her benefit for which, she requested the third

defendant to execute the sale deed in her favour.

Contrary is the view taken by defendant Nos.1 and 2.

Hence, the initial burden of proving that item Nos.1 and

2 are the property acquired by the father of the plaintiff

has been demonstrated by the plaintiff by asserting in

the witness box. Admittedly, all the three properties

were available to the family when father was alive. The

allegations in the plaint is very clear that it is he, who

put up the construction in the item No.1 of the suit

schedule property and let out to the tenants, but the

trial court has not considered these aspects.

18. Now, the right of the female members of the

family has been settled by the Hon'ble Apex Court in

Vineeta Sharma -vs- Rakesh Sharma (2020) 9 SCC

1. In view of it, the plaintiff is entitled to share in the

ancestral property being the member of the co-

parcenery. Admittedly, there was no partition between

the father and son in the ancestral property. Hence, the

plaintiff has demonstrated her right over the item No.3

of suit schedule property.

19. Since defendants have not adduced any

evidence, it is not proper to record a finding whether the

item Nos.1 and 2 are the self-acquisition of defendant

No.2 or acquired by Muniswamappa. If the parties are

permitted to lead the evidence, if it is established that

the property acquired by Muniswamappa had become

joint family property, the plaintiff gets equal share on

par with the second defendant.

20. As such, the reason assigned by the trial court

throwing the entire burden upon the plaintiff to prove

that the property is the ancestral property and acquired

by her father is not proper. The impugned judgment

was passed on 31.10.2006. In view of changed position

in law, plaintiff is entitled to claim share in item no.3 of

the suit schedule property.

21. The item No.2 of the suit schedule property

stands in the name of the third defendant to whom the

sale consideration is said to have been fully paid and

that in view of the ban of registration of the revenue

sites, title deed was not executed. Plaintiff claims that it

was acquired for her benefit whereas defendant Nos.1

and 2 claim it as self-acquired. The manner of

possession by plaintiff needs consideration whether it is

permissive or she is in her own right as a member of

joint family. Under such circumstances, it is a fit case,

which requires re-consideration by the trial court.

22. We also perused the issues framed in this case.

Issue No.7 does not arise for consideration in view of

the admission made by the defendants. Hence, the trial

court is required to consider other issues by allowing the

parties to lead evidence and to decide the case by

applying the principles of law laid down in the case of

Vineeta Sharma (supra). Therefore, we are of the

opinion that, it is a fit case for remand.

23. In the result, we pass the following order:

(i) The appeal is allowed.

(ii) The impugned judgment and decree passed by

the trial court is hereby set aside.

(iii) The matter is remanded back to the trial court

with a direction to restore the suit to the stage of

evidence, permit both the parties to lead evidence and

to decide the case afresh.

(iv) Having regard to the suit being oldest one, the

trial court is requested to dispose of the matter

expeditiously.

(v) Without further notice, both parties shall

appear before the Trial Court on 10.03.2023.

Sd/-

JUDGE

Sd/-

JUDGE

KNM/-